UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1127
UNITED STATES OF AMERICA,
Appellee,
v.
GARY GARAFANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
John A. MacFadyen for appellant.
Margaret E. Curran, Assistant United States Attorney, with whom
Sheldon Whitehouse, United States Attorney, and Craig N. Moore,
Assistant United States Attorney, were on brief for the United States.
August 7, 1995
BOUDIN, Circuit Judge. In 1993, Gary Garafano was tried
under a single-count indictment, under the Hobbs Act, 18
U.S.C. 1951, for extortion under color of official right.
The substance of the charge was that Garafano had extorted
money from Forte Brothers, a construction firm with city
contracts, threatening otherwise to cease authorizing
construction work performed by the firm for the city.
Garafano was at that time an official of the Providence,
Rhode Island, Department of Public Works.
At trial, James Forte, the firm's vice president,
testified that Garafano had initially demanded $8,000 and
that he (Forte) gave the $8,000 to Steven Tocco, a supervisor
in his firm, for delivery to Garafano. Tocco testified that
he delivered the $8,000 to Garafano, that he made additional
payments to Garafano (for a total of $100,000), and that
Forte Brothers inflated its billings to the city to cover the
payments. Garafano denied receiving any payments from Forte
Brothers. The jury convicted him on a general verdict that
did not indicate whether the jury had found multiple payments
or only a single one.
Whether there was one payment or multiple payments
affected the sentencing guideline range, see United States v.
Garafano, 36 F.3d 133, 134 (1st Cir. 1994), and this was the
principal subject of controversy at the original sentencing
hearing. There, defense counsel took the position that only
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the initial $8,000 payment was supported by adequate evidence
and that Tocco's testimony as to further payments was an
attempt to conceal his own pocketing of the money. The
prosecutor replied that the court lacked "discretion to
piecemeal the jury's verdict in this case."
The district judge concluded that Garafano should be
sentenced on the premise that Garafano had engaged in
multiple extortions amounting to $100,000, and the court
sentenced Garafano accordingly. However, the judge made one
or two remarks that suggested that he might be agreeing with
the prosecutor's apparent suggestion that a challenge to
Tocco's trial testimony was effectively a collateral attack
on the jury's verdict. Garafano appealed from his sentence,
claiming that the district court had refused to make an
independent assessment of the Tocco testimony.
On the appeal, the government conceded the jury verdict
did not resolve the question of whether there had been one
bribe or multiple bribes, but it asserted that the district
judge had made an independent assessment. We agreed that
this was likely but "to remove the shadow of uncertainty" we
determined to remand, pointing out that the potential impact
on the sentence was significant and that it would take very
little effort to resolve the uncertainty. Garafano, 36 F.3d
at 135-36. We declined the government's suggestion that we
retain jurisdiction and also declined defense counsel's
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alternative request for an entirely new sentencing hearing.
Instead, we said the following (36 F.3d at 136):
We propose to vacate the existing sentence and
remand the matter to the district court for
resentencing. The district court has already given
Garafano a chance to argue his evidentiary position
in full and no request was made by defense counsel
to offer new evidence; if the district court did
(at the earlier hearing) or did not then but now
does find (independently of the jury verdict) that
bribes continued until December 1990 and were
around $100,000, the court is free to say so
summarily and to reimpose the same sentence. No
additional proceedings, or further explanation or
findings, are required. See United States v.
Savoie, 985 F.2d 612, 620-21 (1st Cir. 1993).
Conversely, the district court is free to
order any further proceedings it deems appropriate
before imposing sentence. It may do so if there
was an actual misunderstanding at the original
sentencing as to the district court's authority, or
merely because the court thinks that this would be
useful to it. But if the court does change the
factual premise on which it sentences Garafano and
thereby alters the guideline range available we
think that it would be within the spirit of the
rules to provide counsel and the defendant an
opportunity to allocute again.
On remand, the district court invited both sides to
provide written submissions detailing the support for their
respective positions. Defense counsel argued that there was
not enough reliable evidence to support findings of multiple
bribes in excess of $8,000, and also submitted an affidavit
from Anthony Stanzione, a city engineer during Garafano's
service with the Public Works Department. Stanzione said
that he oversaw daily work on the job sites and approved the
bills and said that the Forte Brothers' invoices did not, to
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the best of Stanzione's knowledge, reflect inflated bills.
He also made other statements that in certain respects
supported Garafano's testimony at trial. Garafano's counsel
requested an evidentiary hearing, which the prosecutor
opposed.
After further written exchanges, the district court held
a new sentencing hearing on December 13, 1994. At the
conclusion, the district judge said: "There is no doubt in
my mind that at the earlier hearing I independently found
that bribes continued until December 1990 and were around one
hundred thousand dollars." As to the request for an
evidentiary hearing, the district judge said that "the
testimony as a whole supports Tocco and I see nothing in
Stanzione's affidavit that steers me in another direction."
Accordingly, the district court reimposed the original
sentence.
Garafano has now appealed again. On this appeal,
Garafano's main argument is that the district court abused
its discretion when it declined to hear Stanzione testify.
The government says, correctly, that this court's mandate was
fully satisfied by the district court. The instructions on
remand explicitly permitted the district court to determine
that it "did (at the earlier hearing) . . . find
(independently of the jury verdict) that bribes continued
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until December 1990 and were around $100,000 . . . ." 36
F.3d at 136.
We said that, in that event, the district court could
say so summarily, provide no additional proceedings or
further explanations or findings, and reimpose the same
sentence. Id. This is just what the district judge did.
Although the district court invited the parties to restate
their positions, and the court reviewed again the presentence
report and associated notes, it did so as part of the effort
to assure itself that it had at the original sentencing "made
the requisite evaluation independent of the jury verdict . .
. ."
The result would not change if we viewed the matter
independently of the mandate. The right to present live
testimony at sentencing is not automatic and is reviewed only
for abuse of discretion. See United States v. Gerante, 891
F.2d 364, 367 (1st Cir. 1989). It is fairly common for
district courts to consider affidavits, proffers and far less
formal sources of information at sentencing, especially
where--as here--the sentencing judge presided over a trial
that involved the same issues presented at sentencing.
In this instance, we read the district court's ruling as
a determination by the district judge that, even if Stanzione
had testified to the substance of what was contained in his
affidavit, the district court would still have accepted
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Tocco's version of events. There is no claim by Garafano--
and if there were, we would reject it--that the district
judge was rationally obligated to accept Stanzione's version
of events. Indeed, at least some of Stanzione's assertions
could have been accepted without disproving Tocco's
testimony.
Defense counsel says that where credibility is
important, the judge needs to listen to the witness testify
in his own words in open court; and counsel added at oral
argument that there were bound to be helpful details in the
testimony not captured in the proffer. There are
possibilities that would have greater or lesser force
depending on the facts, and we think that no absolute rule
can be fashioned. It is enough to say here that these
considerations are part of the calculus and that the
determination not to hear live testimony here was not an
abuse of discretion.
After all, the district court had heard all of the live
evidence on multiple payments that either side sought to
present at trial. When the belated proffer of Stanzione's
testimony was made, the district judge had only one more
piece to fit into a puzzle with which the judge was already
familiar. On the facts before us, we think the district
court made a legitimate practical judgment that converting
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the proffer into live testimony would not materially improve
the court's ability to make this judgment.
Finally, Garafano suggests that, in violation of Fed. R.
Crim. P. 32(c)(3)(C), he was improperly denied an opportunity
for allocution at his second sentencing hearing. The
suggestion is without merit. This court said in its mandate
that an opportunity to allocute again should be afforded "if
the [district] court does change the factual premise on which
it sentences Garafano" and "thereby alters the guideline
range available." 36 F.3d at 136. The district court did
not change either the factual predicate (multiple bribes
amounting to $100,000) or the guideline range.
At oral argument, counsel for Garafano suggested that,
assuming that the mandate was complied with by the district
court, this court lacked authority to fashion such a limited
remand; put differently, the suggestion is that this court by
vacating the original sentence automatically entitled
Garafano to start from ground zero, as if the original
sentencing hearing had not occurred. We flatly reject this
kind of legal formalism that sacrifices substance in favor of
ritual.
Federal appellate courts, including the courts of
appeals as well as the Supreme Court, have been granted broad
authority under 28 U.S.C. 2106 to
affirm, modify, vacate, set aside or reverse any
judgment, decree, or order of a court lawfully
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brought before it for review, and may remand the
cause and direct the entry of such appropriate
judgment, decree, or order, or require such further
proceedings to be had as may be just under the
circumstances.
One effect of this long-established formula is to allow
appellate courts the flexibility to adapt their mandates to
the particular problem discerned on appeal and to provide an
efficient and sensible solution. This provision authorizes
just the kind of "middle way" that this court adopted when it
rejected the government's request that we pose only a single
question to the district court and Garafano's alternative
request that the district court be required to start afresh.
The reason why we followed the middle course is
apparent. An entirely new sentencing hearing was unnecessary
if, as we suspected was the case, the district court had at
the original sentencing made an independent finding of
multiple bribes. On the other hand, if (contrary to our
expectation) the district judge said that he had relied
simply on the jury verdict, then some further proceedings
would be necessary, and we wanted the district court to have
that authority without having to report back to this court
and obtain a new mandate. Accordingly, our limited remand
embraced both possibilities.
Of course, we would not frame a remand order that did
violence to the substance of Rule 32(c)(3)(C). That rule is
designed to give the defendant an opportunity "to make a
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statement and present any information in mitigation of the
sentence." Garafano and his counsel had this opportunity in
full at the first hearing. There is nothing in the rule or
its rationale that requires a defendant to be given a second
opportunity if all else remains unchanged.
In this case, all else did remain unchanged once the
district court reaffirmed its original finding of multiple
bribes, a $100,000 total, and the original guideline range.
The defendant had no more right under these circumstances to
a new allocution than to a new presentence report. Defense
counsel's suggestion that Stanzione's proffer was something
on which to base a new allocution, after the proffer was
effectively rejected by the district judge, is not a serious
argument.
Affirmed.
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